Question 1: I have a resident that is requesting permission to have a dog. She submitted a note from a doctor written on a doctor’s prescription slip. The note states “please allow my patient to have a small dog.” The building is a ‘no pet’ building, but the tenant is insisting she has the right to have her dog live with her. Does she?
Answer 1: I have provided lengthy explanations in prior columns to similar questions by members, and would suggest a review of those prior responses (available from the magazine archives). Those prior responses discuss in detail some of the issues regarding ‘service animals’ and ‘comfort pets,’ which raise similar but not identical issues. Your situation seems to refer to the ‘comfort pet’ concept.
In short, under both state and federal law, there is a rule called ‘reasonable accommodation,’ which a tenant can assert to compel a landlord to allow a disabled tenant to have a pet despite lease restrictions on pets. The landlord’s obligation to allow a tenant to have a pet despite lease restrictions will be decided by the facts of each situation, but, in general, a genuine disability, combined with a properly supported request (meaning a requested supported by medical evidence of the need for and connection between the pet and the tenant’s condition), will likely result in a finding that the pet must be allowed (though of course the owner is responsible for the proper conduct of the pet).
Question 2: Are there any restrictions specific to Millbrae, CA regarding giving tenants a 60-day notice to vacate?
Answer 2: I am not aware of any eviction restrictions in Millbrae beyond the applicable state law on termination notices. An online search for any recently-enacted or proposed rent control or eviction control laws did not reveal any such activity (as is occurring in other bay area communities such as Richmond, Alameda, and possible Pacifica).
Question 3: We have a prospective tenant that wants to pay one year rent in advance. Can we accept this? Is there any particular language we should include in our lease?
Answer 3: There is a statutory provision that allows for payment of at least six months’ rent in advance as long as the lease is at least 6 months or longer, so accepting one year should not be prohibited. The lease will simply reflect that the tenant has paid rent in advance for one year for the one year lease, and that the advance payment is made pursuant to Civil Code Section 1950.5(c). Whether the advance payment is refundable to any degree if the tenant breaches the lease or leaves before the lease expires is not clear, and you will have to ask that question only if such event occurs. There will be an argument that the pre-paid lease is still subject to the law on security deposits, which does not allow for non-refundable deposits.
Question 4: We have tenants who want to move out before their lease expires July 31. I told them they would be responsible for the rest of the lease. She wants to give us an application form for new tenants to take over the lease, but we do not want to make any changes to the lease or occupants. The tenant is saying she will take us to small claims court. Can she do this?
Answer 4: Unless the lease has an absolute prohibition on subletting or assignment, the tenant is entitled to sublet, with your permission, which you may not unreasonably withhold, and the only bases to withhold consent are the credit or conduct history of the applicant. So, if you refuse, and try to hold her responsible for the rest of the rent, she can defend on the basis that you breached the lease by not allowing the sub-tenancy/assignment.
Question 5: I am property manager and I would like to know what if any is my responsibility for complying with the Fremont rent control law?
Answer 5: I always recommend that property owners and their agents review the applicable law or ordinance and understand the owner/property manager’s obligations to the tenants under the ordinance, specifically with regard to rent increases and termination of tenancies. The manager will have the same duty to comply as the owner, though the consequences of failing to comply may only be suffered by the owner (who might replace his or her property manager though, if the agent’s actions cause the owner to suffer some consequence).
A rent increase on a Fremont tenant that does not comply with the ordinance is invalid, for example, regardless of who serves the notice. The City of Fremont does not have a rent control ordinance. However, it does have a ‘Rent Increase Ordinance’, which provides that:
All rent increase notices shall be in writing and landlords are encouraged to provide at least 90 calendar days’ notice of any rent increase in order to allow for orderly operation of the dispute resolution. Unless otherwise agreed by the parties in writing, rent increases shall be limited to one increase in any consecutive 12-month period. There is a very specific process that must be followed. For more information contact the City of Fremont Housing Division at (510) 494-4500 or visit: Residential Rent Increase Dispute Resolution Ordinance
Question 6: I am working with my neighbor’s property management company to repair/replace a fence that was blown over during the winter storms. I found a local handyman to provide a written estimate, which I forwarded to the property management company. The property management company provided a quote of cost and details from one of their handymen. However, they did not provide me with the name and contact details for the handyman. Do I have a right to ask and receive the name and contact details of the individual they found to provide the quote? Thanks!
Answer 6: If you are being asked to contribute to the cost of the fence repair, of course you have the right to request the information on the person being considered for the job, who should also be a licensed contractor since that project probably requires a license, and there are financial risks associated with hiring an unlicensed person to do work for which a license is required. It involves the rules of independent contractor and employee injury liability, but in general, hiring a licensed contractor who is properly insured is your protection against such risks.
Question 7: There is a tree in the backyard of one of our rentals, and the limbs from the tree are hanging over into the neighbor’s yard. The neighbor has asked us to have the tree trimmed. We refused to do so, and told her she can cut the limbs on her side of the fence to the fence line herself. The neighbor states she is aware that she can legally cut the limbs on her side of the fence, but does not want necessarily want to take on that responsibility. She is stating that if she does choose to cut the limbs and there is any negative effect from that such as damage to the shared fence, or to her property in any way, then she will consider suing us. Would her claim stand up in court? Do we have any way to protect him besides hiring someone to do the work? Any information you can supply will be greatly appreciated.
Answer 7: In summary, the authorities are not completely clear, but based on the leading legal treatise, the neighbor is allowed to trim the branches that overhang her property, but may also claim that the overhanging branches (and roots, and fruit, if any) constitute a ‘trespass’ or ‘nuisance’ and seek to hold you responsible for their removal. I would recommend that you and your neighbor act neighborly and reach some sort of reasonable compromise. Various cases about tree cutting and trimming limbs make it clear how these things can get out of control if the parties just rely on ‘the law’ for the solution. See http://www.marinmagazine.com/February-2009/Tree-Wars/ and http://www.legal-news-california.tozerlaw.com/tree_law_california.html for two articles on the issue area and the case Rony v. Costa, 210 Cal. App. 4th 746 (Cal. App. 1st Dist. 2012). The lesson of these cases is, negotiate, and do not litigate!
Question 8: I have a detached one bedroom cottage on a property that also has 4 other detached 1 bedroom/1 bath cottages. Because they are detached with individual addresses i.e. 2106-A Pacific Ave, 2106-B Pacific Avenue, 2106-C Pacific Ave etc. Are they protected under the Costa Hawkins ruling of single family home versus apartments? My property insurance recognizes them and insures them as individual cottages.
Answer 8:As to the multiple cottages, the state law known as Costa Hawkins requires that for the single family home exemption to apply, the individual cottages must be ‘separately alienable,’ which means you can sell each unit separately from any other unit (as a condo or single family home). This basically means each unit must have its own assessor’s parcel number (APN), which your title company may be able to confirm your units have or do not have. From your description, it is likely that all the cottages share one parcel number, and so would not be covered by the Costa Hawkins state law that exempts most single family homes and condos from local rent control. It is possible your insurance agent would have this information. Finally, your tax assessor’s office should have this information.
ALERTS AND UPDATES:
Alameda Rent Control: In the March edition of the Q&A column, I noted that the town of Alameda continued a temporary moratorium rent control and eviction control law, for the purpose of limiting the effect of rent increases and evictions, until the city council could consider whether to pass a more long term plan to address the rising rents and evictions in Alameda. On March 1, 2016, the town council passed Ordinance 3148 to enact rent and eviction control as law.
It is strongly recommended that every Alameda landlord become familiar with the new law before taking any actions to increase rent or change or terminate tenancies (or to continue any existing or pending increases or termination notices). There are various required notices that must be provided to tenants before any rent increase may be imposed, limits on the amounts and timing of increases, limitations on evictions, and provisions for payment of relocation benefits to tenants being evicted for non-breach of lease reasons.
The current ordinance can be found at:
Case Decision on Lease Breaches:
Recently, I wrote about a recent case in which the appellate court held that even a minor breach of the lease could justify eviction for such breach, if the lease contained language that allowed the owner that remedy for any breach of the lease. At the time, I thought that decision was contrary to fairly settled law that had held for decades that a breach of the lease justifying termination of the tenancy and forfeiture of the lease must be ‘material,” i.e. something relatively significant, and not a ‘technical’ violation. A later appellate review of that decision agreed.
The case, Boston LLC v. Juarez, 245 Cal. App. 4th 75 (Cal. App. 2d Dist. 2016), was appealed to a higher appellate court, which ruled that the lower appellate court was wrong, and that the historic rule that a breach must be material still stands, despite a lease provision to the contrary. The issue in the Boston v Juarez case involved the tenant’s failure to secure renter’s insurance, despite a lease requirement that he do so, and a lease provision that any breach was grounds for termination. The court held that renter’s insurance is for the benefit of the tenant, and so the failure of the tenant to comply with the provision was not a detriment to the owner. While the court left the door open for a case with additional facts to demonstrate that a renter’s insurance provision, and its breach by the tenant, may justify termination, for now the basic rule is that the lease can require the tenant to carry renter’s insurance, but the tenant will not evicted for failing to do so.
Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email [email protected] or by visiting the website www.beckmanblairllp.com